Re-launched in April 2010 after 12 months’ absence from the internet, this Legal Commentary on issues affecting Town & Country Planning offers comment on recent changes in planning legislation and judicial rulings in planning cases, as well as some thoughts on other issues arising in the course of my work as a Planning Lawyer. It is likely to be of interest mainly to fellow planning professionals, but all are welcome to read it. The views expressed are my own and nobody else’s.

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Saturday, 9 February 2013

Agricultural buildings - the “reasonably necessary” test under Part 6

Everyone is familiar with the prior notification procedure under Part 6 (Class A) of the Second Schedule to the General Permitted Development Order (erection of a building and other operational development on an agricultural unit of 5 ha or more), but it should not be forgotten that, in order to qualify as permitted development under this part of the GPDO, the building in question must also be “reasonably necessary for the purposes of agriculture within that unit”.

The question as to whether or not a particular building is reasonably necessary for the purposes of agriculture is not one for determination by the LPA; it is purely a matter of fact and degree – either the test is met or it is not. It is an entirely objective test. However, existing government guidance (in the still extant Annex E to the old PPG7) does encourage LPAs to state their opinion if they believe that the building in respect of which they have received prior notification is not reasonably necessary for the purposes of agriculture. The important point to be borne in mind is that any such opinion has no binding effect. The mere statement of such an opinion cannot in itself disqualify development from being permitted development within Part 6 (Class A). On the other hand, there will clearly be an onus on the developer, if their right to erect the building as permitted development is challenged, to prove on the balance of probability that the objective test of reasonable necessity is in fact met.

An LPA may easily fall into a trap if it forms the opinion that the building is not reasonably necessary for the purposes of agriculture and then (as a result of that) fails to respond to the application it has received within the mandatory 28-day period. If the LPA is objectively correct in its view that the building does not meet the qualifying criterion, then it is not under an obligation to respond to the prior notification application within 28 days or at all. However, if it turns out that the LPA was wrong about the test of reasonable necessity, then a failure to respond to the notice within the 28-day time limit will allow the developer to proceed with the erection of the building without any further input from the LPA, and in particular without obtaining the LPA’s approval of its siting or design.

One point which is abundantly clear is that a building will not qualify under Part 6 (Class A) if the agricultural activity has not yet started or is being conducted purely or mainly as a hobby. Paragraph D.1 in Part 6 of the GPDO clearly states that, for the purposes of Part 6, “agricultural land” means land which, before development permitted by this part is carried out, is land in use for agriculture for the purpose of a trade or business (i.e. there must be an existing agricultural use and this must be a business, not a hobby). So a building cannot be erected as permitted development under Part 6 where the agricultural enterprise has not yet started, and it cannot be erected if the agricultural activity amounts to no more than ‘hobby farming’.

Thus the ‘chicken and the egg’ question can be easily answered in relation to this particular issue – the ‘chicken’ (the agricultural enterprise, conducted on a commercial basis) must come first. Only then can the ‘egg’ (a new agricultural building or buildings) follow, and only if the ‘reasonably necessary’ test is met, as well as the other criteria laid down in Class A of Part 6.

The need to meet the objective test of reasonable need for the building does not necessarily imply a requirement to prove that the agricultural unit is commercially viable. However, the issue of the viability of the agricultural unit cannot be entirely ignored, because if there is no viable agricultural business being carried on, then there may be some doubt as to whether the site falls within the definition of “agricultural land” at all, as explained above, and it might reasonably be argued that it shows that the building in question is not reasonably necessary for the purposes of agriculture. This is not to say that it is essential to be able to demonstrate the commercial viability of the agricultural enterprise, but if the agricultural enterprise is not (currently) viable, it may in those circumstances be difficult to show on an objective basis that the building is reasonably necessary for the purposes of agriculture within that unit.

Unfortunately, it is impossible to lay down any hard and fast rule in relation to these points. All I can say is that the developer does need (if challenged) to be able to demonstrate on the balance of probability that the objective test as to the building’s being reasonably necessary for the purposes of agriculture within that unit was met at the time when it was erected. The commercial viability of the agricultural unit may well be a factor in relation to this question, although viability might not be the determinative factor in the circumstances of a particular case. I suggest, for instance, that whereas the test formerly proposed by the now withdrawn Annex A to PPS7 (in relation to demonstrating a need for a new agricultural dwelling) insisted on existing viability being proved by at least three years’ accounts, the ‘reasonably necessary’ test for other agricultural buildings does not appear to require such a stringent criterion to be applied. Future or potential viability might suffice to satisfy the test, so long as it can be shown that there is a reasonable basis for anticipating this, sufficient at least to demonstrate on the balance of probability that the proposed agricultural building can properly be said to be reasonably necessary for the purposes of agriculture within that unit.

11 comments:

Anonymous
said...

Not strictly a comment on this blog point above Martin, however i thought i would raise an interesting point with regard to Part 6 and the need for the LPA not to be concerned about the exact size of a Barn Development that has been decided that no prior approval is required. The development having been started was different in size to the original application, but less than 10% increase in overall size. Does a Full Planning Application need to be made as clearly a retrospective Prior Approval Notice is not possible, or would it simply be within the original determination? LPAs seem to like the stock approach you need to make a full planning Application otherwise we shall take enforcement action... Interested in your thoughts here thank you

The application under Class A of Part 6 must be accompanied by a written description of the proposed development and of the materials to be used and a plan indicating the site [A.2(2)(ii)]. Where prior approval of the siting and design of the building is not required by the LPA, the development must be carried out in accordance with the details submitted with the application [A.2(2)(v)(bb)]. So the rules do not require the submission of design details as such at the time of giving prior notification (the ‘application’), and this may allow some flexibility in practice as to the actual size and design of the building. On the other hand, if such information is in fact given in the application, then it is clear that the development must be carried out in accordance with those details. If the building as erected is not in accordance with the details that were given, then it is not permitted development, and there would be no alterative in such a case other than to seek a full planning permission (retrospectively) for the development that has been carried out.

Many thanks for this extremely useful blog. Our local LPA has recently granted Permitted Development for a large modern barn to be doubled in size. In fact:a) The barn extension will block the definitive route of a footpath andb) The barn extension and the original barn (erected two years ago) do not, I believe, meet the 'reasonably necessary' test as you describe it as the barns and the fields immediately surrounding it are (and have always been) let to a tenant who uses them only to store tractors and enable 'hobby farming' in the fields immediately adjacent. (The landlords own other agricultural land that is commercially farmed, but this is let to a separate tenant who has no access to the barn).

Is there a process to appeal against the Permitted Development decision in these circumstances and to insist that the development is subject instead to the normal Planning Permission process?

The only way in which a decision of this nature could be challenged or questioned would be by means of an application to the High Court for the judicial review of the decision. This is both extremely expensive (£30K and upwards) and very risky. The chances of success would be extremely low, but one of my colleagues in our Planning Law team specialises in judicial review in planning cases, and could advise on the matter if we were to be instructed. However, even this would involve some significant costs, which would have to be deposited in advance of our being able to look at the papers.

martin is this correctIt is relevant to note that in accordance with part 6 of the General Permitted Development Order any building which is erected under agricultural permitted development rights, and subsequently ceases to be required for agricultural uses within ten years of completion, should be removed.

The point that has now been raised does not affect the lawfulness of the erection of the building if it was reasonably necessary at the time when it was built. The condition in paragraph A.2(5) only applies if the use of the building for the purposes of agriculture within the unit permanently ceases within 10 years from the date on which the development was substantially completed. Thus, provided the building was ‘reasonably necessary’ in the first place, it does not have to continue to meet that criterion indefinitely. It simply has to continue to be used in some way for the purposes of agriculture within the unit, whether the later use is or is not 'reasonbly necessary'.

Furthermore, paragraph A.2(5)(b) gives a three-year period of grace after the use of the building for agricultural purposes ceases, within which planning permission can be sought for development of the building (which might take the form of a simple change of use) for purposes other than agriculture. So a local planning authority cannot leap in with a demand that the building be removed on the grounds that it is no longer being used for agriculture if that use ceased less than three years ago.

If the building continues to be used for agriculture within the unit for at least 10 years, then there is no requirement for its removal if it ceases after that time to be used for that purpose, although its use for any other purpose would, of course, require planning permission.

Regarding prior notification for the construction of a new agricultural building. Can you please confirm that an existing agricultural use must be taking place on the land in question before approval can be given. We have found your planning blog an invaluable source of information in the minefield of the GPDO but failed to convince our Local Authority of this regarding an application which was approved last year and now we have a new application by another family member on the same farm. The rather sad history is that the vast majority of the land has not been farmed since it was sold to developers more than 10 years ago for construction of a golf course, which never materialised. Instead it was used as a landfill site, until enforcement notices brought that to a halt. The land remains in a compromised state and no agricultural use of the land is taking place - it has just been left as a wasteland. The applicant does own or rent other land, not adjacent to this farm but as yet, no documentation has been provided to show where the land relating to the present application for a new agricultural building is situated, so we are unable to tell whether any genuine agricultural activity is taking place to justify a new agricultural building. The Planning Case Officer has said that they have to restrict themselves to 'siting and appearance'and that 'the agricultural use does not have to be an existing use'. Are we right to pursue the need for an existing agricultural use of the land to be demonstrated, in our objection to the LPA?

As I explained in the post I published on Wednesday, 2 April, there has been an inevitable hiatus in the publication of the blog for the past fortnight, and this has also affected the moderation of comments. So I am sorry that Susan’s query of 27/03/14 has had to wait until today before it appeared.

Susan is broadly correct in what she writes. There must be an existing agricultural enterprise, and the applicant must be able to satisfy the LPA that the proposed agricultural building is reasonably required for agriculture within that agricultural unit. Susan ought, perhaps, to pursue a formal complaint with the council, and if necessary with the Local Government Ombudsman if the manner in which this matter has been handled by the council could be said to amount to maladministration. (although a complaint to the LGO must usually be made within one year of the date when the cause of the complaint arose).

Not strictly a comment on this blog, but I have a query regarding the definition of "accommodation of livestock" under Part 6. Would a milking parlour fall under this definition given that the cattle will only use the building for milking purposes and hence the building would not used to house livestock 24 hours a day.

A rather belated response to the query of 12/06/14 - In light of the Court of Appeal decision in Taylor & Sons Farms v. SSETR [2001] EWCA Civ 1254, it would appear that a very wide interpretation is given to the word ‘accommodate’ as it applies to “the accommodation of livestock” in Part 6 of the Second Schedule to the GPDO. I haven’t got time to go into the details but in light of this judgment I think that a milking parlour would probably be caught by this provision. [The usual disclaimer applies. This does not constitute legal advice.]